Employers and recruiters have discovered a treasure trove of information about potential job applicants on social media sites such as Facebook, LinkedIn, and Twitter, and so-called ‘social media background checks’ are becoming more popular and prevalent than ever. However, the use of social media background checks for job applicants has become controversial and can present legal risks. Failure to utilize social media resources can arguably be the basis of a negligent hiring claim if an unfit person was hired for a position where a search of the internet may have raised a “red flag.” Conversely, employers face numerous landmines and pitfalls that can include that include privacy, discrimination, and accuracy issues. Lawsuits and developments in this area will likely be an ongoing topic in 2012.  This is Trend Number 3 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit https://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php. The Lure of Social Media Background Checks It is important to keep in mind that not only will social media searches be a critical part of pre-employment background screening, but there may be considerable activity in how social media is handled after a person is hired. Every employer should have a social media policy for current employees. This article, however, is focused on pre-employment selection and screening. No discussion on employment screening background checks these days is complete without an analysis of how the Internet is used for uncovering information about job candidates. A social media search allows an employer to literally “look under the hood,” and hopefully find out who a person really is. Not only does a social media search help in finding candidates, but it may prove to be an invaluable due diligence tool. For example, if a person’s blogs, social networking page, or tweets appear to promote inappropriate sexual activity or perhaps threats of violence, an employer may want to think twice before putting such a person in contact with groups at risk, such as children, the aged, or the infirmed. Likewise, if a person has made derogatory or unprofessional comments about co-workers or past employers, or engaged in online harassment, those are things that any Human Resources manager may be interested in knowing about. However, while employers and recruiters may feel they hit the information jackpot on potential job applicants by using social networking sites such as Facebook and Twitter, business networking sites like LinkedIn, videos on YouTube, search engines like Google, and various blogs and posts, the unrestricted use of social media background checks can land them in hot water since just because certain information is online does not mean it is risk free or even true. When using the Internet to screen job applicants, employers and recruiters can encounter the following legal risks and potential landmines:

  1. Too Much Information (TMI): Discrimination Allegations: When using the Internet for screening, employers and recruiters may become aware that job candidate is a member of a protected group based on race, creed, color, ancestry, nationality, medical condition, disability (including AIDS), marital status, sex (including pregnancy), sexual preference, or age (40+), which can lead to allegations of discrimination if the candidate does not get the job. All hiring decisions need to be based upon non-discriminatory information that is a valid predictor for job performance.
  2. Too Little Information (TLI): Failure to utilize all available resources could potentially expose employers to lawsuits for negligent hiring if a victim could show that information was easily accessible online that could have prevented a hiring a person that was dishonest, unfit, dangerous, and unqualified, and it was foreseeable that some harm could occur. Employers failing to use social media web sites can potentially be sued for not exercising due diligence. Employers may be in a Catch-22 situation where they are in trouble if they use Internet background checks and are in trouble if they do not use Internet background checks.
  3. Credibility, Accuracy, and Authenticity Issues: Is the information found on the Internet about job applicants even credible, accurate, and authentic – in other words, true.  How do employers and recruiters know if information found online about an applicant is true?
  4. Computer Twins & Cyber-slamming: Most people have “computer twins” online, people with the same names and even a similar date of birth. Employers and recruiters need to make sure what they see online actually refers to the applicant in question. Also, “online identity theft,” false postings under another person’s name, and “Cyber-slamming,” online smearing with derogatory comments that is usually done anonymously, can be a problem.
  5. Legal Off-Duty Conduct: If a social media search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination. A number of states protect workers engaged in legal off-duty conduct and have prohibitions limiting use of private behavior for employment decisions. However, employers do have broader discretion if such behavior would damage a company, hurt business interests, or be inconsistent with business needs.
  6. Privacy Issues: Another problem with Internet background checks yet to be fully explored by the courts is privacy. Everything online is not necessarily “fair game” for employers and recruiters. However, if users do not adjust the privacy setting so that their social network site is easily available from an Internet search, they may have a more difficult time arguing that there is a reasonable expectation of privacy. The bottom line is that the question of whether an applicant has a reasonable expectation of privacy can depend upon the specific facts of the case being litigated, and the issue is far from settled. Until the courts sort this out one thing does seem certain: If an employer uses subterfuge, such as creating a fake online identity to penetrate a social network site, the privacy line has probably been crossed.
  7. Pre-Texting and Fake-Outs: Employers should not simply assume that anything on the web is “fair game” and freely available without consequence. One area where an employer would be flirting with particular trouble is if information is obtained by manipulating the sites. This could be done by creating multiple identities or by using “pretexting,” which can include pretending to be someone else or something you are not.
  8. Should Background Screening Firms Conduct Internet Background Checks?: Employers can go to third party firms for “social media background checks” that will search the Internet for information about job applicants and assemble a report on an applicant’s online identity. However, employers and recruiters should realize that background screening firms using social media information must follow the same federal Fair Credit Reporting Act (FCRA) rules regulating more traditional information sources such as criminal record checks and credit report checks. Therefore, such social network background checks need to have full FCRA compliance which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy. Since a background screening firm has no way of knowing if all of the online information is accurate or even belongs to the applicant in question, it is difficult for screening firms to perform this service consistent with the FCRA.  In other words, screening firms may not be best suited to perform these ‘social media background checks.’ If a consumer demands a reinvestigation and a removal of information, a screening firm may be hard pressed to demonstrate that the entry was in fact placed by or related to the applicant, and in that situation would be legally required to remove the matter from a report.
For background screening purposes, the issue of authenticity and accuracy is of particular concern. Employers should consider if what a job applicant says online is true, and if true, whether it would be a valid predictor of job performance, or whether it would be employment related at all, as well as non-discriminatory. After all, people have been known to exaggerate or make things up. Employers need to make sure what they see online actually refers to the job applicant in question. Under FCRA section 607(b), a Consumer Reporting Agency (CRA) performing background checks needs to exercise “reasonable procedures to assure maximum possible accuracy.” The issue is how to know what information is real or authentic before reporting it to an employer. If a social networking site contains negative information, how is the firm that supplies the information to go about verifying that it is accurate, authentic, and belongs to the applicant? If the search happens to turn up a criminal record, the obligations are even heavier. Social Media Background Checks Increasing but Employers have Reservations Despite the potential risks and uncertainties involved with social media background checks, employers seem intent on using Internet search engines such as Google and social networking sites like Facebook and Twitter for the background screening of job applicants. Whether appropriate or not, the Internet is a public domain, and information about job applicants is being used to screen applicants. A 2009 survey conducted by job networking site CareerBuilder.com of more than 2,600 hiring managers revealed 45 percent of employers used social networking sites to research candidates. The survey also revealed that 35 percent of employers rejected job applicants based on what was uncovered on social networking sites. Of these 35 percent of employers who rejected job applicants based on what was uncovered on social networking sites, the reasons given included:
  • 53 percent cited provocative/inappropriate photographs or information.
  • 44 percent cited content about drinking or using drugs.
  • 35 percent cited bad-mouthing of previous employers, co-workers or clients.
  • 29 percent cited poor communication skills.
  • 26 percent cited discriminatory comments.
  • 24 percent cited misrepresentation of qualifications.
  • 20 percent cited sharing confidential information from a previous employer.
The CareerBuilder survey is available at: http://thehiringsite.careerbuilder.com/2009/08/20/nearly-half-of-employers-use-social-networking-sites-to-screen-job-candidates/. In January 2010, Microsoft released a commissioned research study that outlined the ways human resources professionals worldwide used personal, yet publicly available, online information when screening job candidates. Twelve hundred interviews were conducted for the study in the United States, United Kingdom (U.K.), Germany, and France. Some of the results raised eyebrows. For example:
  • 79 percent of HR professionals surveyed in the U.S. reported reviewing information found on the Internet when examining job candidates.
  • 84 percent of HR professionals surveyed in the U.S. categorized online reputation information as one of the top two factors they considered when reviewing a comprehensive set of candidate information.
  • 70 percent of HR professionals surveyed in the U.S. had rejected a candidate based on online information, with the top factor for rejection being unsuitable photos and videos online. The study revealed that HR professionals are regularly using information about candidates found on the Internet, which could have significant repercussions.
The Microsoft study is referenced at: http://www.microsoft.com/presspass/features/2010/jan10/01-26DataPrivacyDay.mspx?rss_fdn=Top%20Stories. However, a 2011 survey from the Society of Human Resource Management (SHRM) – ‘SHRM Survey Findings: The Use of Social Networking Websites and Online Search Engines in Screening Job Candidates’ – surveyed over 500 randomly selected HR professionals and found that, contrary to popular belief, only approximately one-quarter (26 percent) of organizations used online search engines to screen job candidates during the hiring process while even fewer organizations (18 percent) used social networking sites. The survey also found that 64 percent of organizations had never, or no longer, used online search engines to screen job candidates while 71 percent of organizations had never, or no longer, used social networking websites for that purpose. The reasons why some organizations did not use social networking websites included the following:
  • Two-thirds (66 percent) of organizations indicated they did not use social networking websites due to concerns about the legal risks/discovering information about protected characteristics such as age, race, gender, and religious affiliation.
  • Nearly one half (48 percent) of organizations did not use these sites because they could not verify with confidence the information from the social networking website pages of job candidates.
  • Another 45 percent of organizations indicated that the information found on the social networking sites may not be relevant to a job candidate’s work-related potential or performance.
The survey also revealed a significant increase in the prevalence of formal or informal policies regarding the use of social networking websites to screen candidates over the past three years. While 72 percent of organizations had no formal or informal policies regarding the use of social networking websites for job screening in 2008, this figure has dropped to 56 percent in the recent survey. In addition, 29 percent of organizations plan to implement a formal policy in the next 12 months, up from 11 percent in 2008. As for how many organizations disqualified candidates based on information found by online search engines or social networking websites, of the small percentage of organizations that used such information only 15 percent of this group indicated that they used online search engine information to disqualify job candidates while 30 percent indicated they used social networking information to disqualify job candidates. The SHRM survey is available at: http://www.shrm.org/Research/SurveyFindings/Articles/Pages/TheUseofSocialNetworkingWebsitesandOnlineSearchEnginesinScreeningJobCandidates.aspx. FTC Verifies Social Media Checks from CRAs Subject to Rules of FCRA During the summer of 2011, the Internet buzzed with stories about how the Federal Trade Commission (FTC) gave the official “OK” and “two thumbs up” for social media background checks of job applicants that would include up to seven years of information from social networking sites such as Facebook and Twitter that are in compliance with the federal Fair Credit Reporting Act (FCRA) regulating the collection, dissemination, and use of consumer information. However, contrary to reports calling the FTC’s action an official endorsement, a June 2011 blog on the FTC website, ‘The Fair Credit Reporting Act & Social Media: What Businesses Should Know,’ indicated that Internet background checks using social media information simply must follow the same FCRA rules that apply to the more traditional information – employment and salary history, criminal records, and credit reports – that FCRA compliant background screening firms and employers have used in the past. The FTC blog states that regardless of the type of information in a report that employers use when making hiring decisions, the rules are the same. “Companies providing reports to employers – and employers using reports – must comply with the Fair Credit Reporting Act.” The blog also mentions an investigation that the FTC recently dropped: “The FTC staff recently looked at a company selling background reports that include information from social media to see if they were complying with FCRA. Staff’s letter to the company emphasized that when reports include information derived from social media, the same rules apply. For example, companies selling background reports must take reasonable steps to ensure the maximum possible accuracy of what’s reported from social networks and that it relates to the correct person. They have to comply with other FCRA sections, too – like providing copies of reports to people and having a process in place if people dispute what’s said about them in a report. In addition, companies must give employers who use their reports information about employers’ responsibilities under FCRA – like their obligation to provide employees or applicants with advance notice of any adverse action taken on the basis of the reports. Another key requirement: Companies selling background reports for employment must require that employers certify the report won’t be used in a way that would violate federal or state equal employment opportunity laws or regulations. Of course, given the sensitive nature of the information in reports, everyone – companies selling the reports and employers using them – has a legal obligation to keep them secure and dispose of them properly.” The FTC – the government’s consumer protection agency – had been investigating an Internet and social media background screening service that offered employers background screening reports containing information gathered from social networking sites. They completed the investigation and determined that no further action was warranted. To read the FTC blog, “The Fair Credit Reporting Act & Social Media: What Businesses Should Know,” visit http://business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know. Managing the Risks of Using Social Media Background Checks To minimize the risks of using the Internet for background checks, Employment Screening Resources (ESR) – a nationwide background screening provider accredited by The National Association of Professional Background Screeners (NAPBS®) – released a white paper titled ‘Managing the Risks of Using the Internet for Employment Screening Background Checks’ that provided an informative introduction to the risks and roadblocks employers and recruiters face using Internet search engines like Google and social network sites such as Facebook for recruitment and employment screening, as well as potential solutions to avoid legal issues.  The complimentary white paper from ESR, ‘Managing the Risks of Using the Internet for Employment Screening Background Checks,’ is available for download at: https://www.esrcheck.com/Download/. ESR suggests employers may consider taking the following steps if they decide to conduct social media background checks to avoid possible legal risks:
  • If an employer uses the Internet, they should first consult their attorney in order to develop a written policy and fair and non-discriminatory procedures designed to locate information that is a valid predictor of job performance, and non-discriminatory. Employers should focus on objective criteria.
  • Employers should write job descriptions that contain the essential functions – as well as the knowledge, skills, and ability (KSA) – required for the job.
  • As a general rule, the later in the hiring process the Internet is used, the less open an employer may be to suggestions that matters viewed on the Internet were used in a discriminatory fashion. The most conservative approach is to not use the Internet until AFTER there has been a conditional job offer and consent.
  • Employers need to be concerned whether information found online is potentially discriminatory to job candidates who are members of protected classes based on prohibited criteria such as: race, creed, color, nationality, ancestry, medical condition, disability, marital status, sex (including pregnancy), sexual preference, or age (40+). All of these protected criteria of applicants may be revealed by an Internet search.
  • In addition, employers need to be concerned if information found on the Internet violates state laws concerning legal “off duty” conduct.
  • For legal protection, the most conservative approach is to perform an Internet search only after there is consent from the job applicant and a job offer is made contingent upon completion of a background check that is satisfactory to the employer.
  • Employers should not use any fake identities or engage in “pretexting” to gain access to information.
  • Whatever an employer’s policy is, it should be written.  For employers that recruit at college, there is a trend to require employers to notify students ahead of time as to their policy for searching the Internet for an applicant’s online identity.
  • Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible or discriminatory information is not given to the decision maker. The in-house background screening should also have training in the non-discriminatory use of online information, knowledge of the job description, and use objective methods that are the same for all job candidates for each type of position. That way, only permissible information is transmitted to the person that is making the decision.
  • As a final protection, a firm may even consider letting an applicant view any negative information first to ensure that it is complete and up-to-date.
The suggestions are similar for recruiters. However, a recruiter is in a different circumstance because the applicant may not even, know they are being review. However, discrimination rules apply to the entire hiring process.  For recruiters, establishing objective metrics and a systematic approach used for all applicants are two important considerations. The bottom line when using the Internet for employment screening background checks is that employers should proceed with caution. Using the Internet to background check job candidates is not risk-free, especially since there has yet to be clear law or court cases that show how to proceed in this area. In the meantime, employers should not assume that everything is fair game online in the pursuit of social media information about job applicants. To read more ESR News blogs about using social network sites for screening, visit https://www.esrcheck.com/wordpress/tag/social-networking-sites/.  Learn more about Employment Screening Resources (ESR) at https://www.esrcheck.com/ or call toll free 888.999.4474. Sources: http://thehiringsite.careerbuilder.com/2009/08/20/nearly-half-of-employers-use-social-networking-sites-to-screen-job-candidates/. http://business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know. http://www.microsoft.com/presspass/features/2010/jan10/01-26DataPrivacyDay.mspx?rss_fdn=Top%20Stories. http://www.shrm.org/Research/SurveyFindings/Articles/Pages/TheUseofSocialNetworkingWebsitesandOnlineSearchEnginesinScreeningJobCandidates.aspx. About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco, CA area, Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR Founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions.  ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than two percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit https://www.esrcheck.com or call toll free 888.999.4474. About ESR News: The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at [email protected].]]>